Agunah and Communal Takkanah/Rabbi Menachem Rosenfeld

Posted on November 10, 2013


I was in attendance at a recent Shloshim shiur dedicated to the memory of the late Rav Ovadia Yossef Z’L. One of the agenda topics was the position that Rav Yossef Z’L took towards conversions. One of the audience members asked, as an aside, about the communal Takkanah (i.e. enactment) imposed upon Syrian Jews by which the community had accepted a ban against marriages with an individual who had converted for the sake of marriage. The speaker, Rabbi R. Hidary, indicated that this enactment had originated in other world communities (e.g. Argentina) and has met with universal acceptance within the American-Syrian community. As is true with any such enactment, it had been deemed to serve an important goal and was based on rabbinic policy and authority.

In recent days, we have been aware of yet another public discussion on how Agunah is dealt with by Orthodox Jews. Details of private matters have found their way into the public domain and Torah-true Judaism once again has been confronted with yet another potential crisis. While the number of Agunah women (and men) may not number more than a few hundred cases, the constant attention they generate makes us all wince in anguish. This is not a topic we prefer to discuss. It is certainly not a topic we wish to see in the public media.

Attempts to deal with the Agunah situation “al pi Halacha” have been both controversial and less than successful. We all realize that people may choose to abuse halachic norms and there is not always a ready solution we can call upon to render relief to the aggrieved. In addition, the community invariably gets into a discussion of who is right and who is wrong in the specific marital clash. We are, by now, accustomed to read that we cannot judge the matter until we have all the facts. In the interim, the full facts are rarely made available, and the community is made to look deficient in the eyes of many who are much too quick to judge us all.

As I think about the use of the concept of Takkanah, I believe there is an approach that might help alleviate at least some of these disputed matters. I do not believe that there are any reasonable people in our community who believe that rendering one an Agunah, when no controversy actually exists, is a proper path to take. The controversy often centers about what goals do justify the decision to withhold a get. Is denial of visitation rights a justification for such Get refusal? Is defamation of a party a justification? Are broken promises a reason for refusal? Perhaps it is precisely in this tragic situation where a concerted Takkanah by concerned communities might be able to make a difference.

The inability to find a conclusive solution to Agunah allows our detractors to accuse us of insensitivity and an anti-woman bias. (Although a man too can become an Agun, the overwhelming number of aggrieved parties are women.). It is time for our community to articulate the pain we all collectively feel when those who abuse the halachic order decide that they will not cooperate in the Get process. However, words by themselves are of little utility. The Alter of Slabodka once commented that a sigh is “traif’ as it often becomes an excuse for inaction. The sigh is the indication that we did what we could do and it is time to move on to other matters. This is not acceptable in the matter of Agunah. Communities such as yeshivas, Shuls, communal organizations, etc should undertake, via a Takkanah, to refuse to provide its services for those who use the get process for monetary gain or for inglorious purposes. How can this be done?

My proposal would be that all who are involved in Get-refusal matters need to try to reach a proper and dignified resolution of their issues. There are only a few recognized ways of doing this. A couple dealing with Agunah issues can decide to go to voluntary mediation is the hope of reaching a proper accord. Mediation offers the parties the chance to discuss their differences with a trained, neutral third-party, in the hopes of finding a solution. Mediation is one option a couple may decide to pursue.

An alternative route would be a resort to a panel that is constituted as an arbitration panel with binding authority. The decision they reach is no less binding than a decision that a Court would reach in its adjudications. The arbitration panel, however, is often quicker, more expert in the specific issues and a good deal less costly than is Court involvement. The parties can agree e.g. to go to one arbitrator, or a panel of three, after it has signed a statement that it will be bound by the arbitration decision.

The final option that the couple may wish to exercise is the presentation of all claims to a Beth Din which will serve in the same capacity as the arbitration panel. (Although this option is listed last in the sequence, it is clearly not meant to mitigate the function of the Beth Din. Rather it is a recognition that some parties would prefer the voluntary nature of mediation or the purported expertise presented by an arbitration panel that would be selected by the parties engaged in the controversy.)

Any of the above three options is capable of resolving all issues that stand in the way of full cooperation that must precede the get process. What happens however if a party does not wish to go to any forum or abandons the process before a resolution can be found. In such situations, the Takkanah would be invoked to ensure that the services of the school, Shul, or communal agency will be denied to the offending party. Surely, in some cases it will be difficult to determine who is the offending party. In such a case, a Beth Din determination would need to be sought. If one party refuses to go to such a tribunal, s/he will be deemed to be the offending party. If both parties refuse, they will both be deemed the offending party. It would be incumbent on the Shul, school, or agency, however, to require that the Beth Din be visited if the controversy was not resolved by the prescribed methods listed above.

The proposal I have outlined would place the Jewish community on record as stating that it will not countenance unethical behavior. It will indicate that the community is prepared to use its good offices to oversee reasonable ways of trying to resolve Get contests. Finally, the Takkanah will ensure that all are aware that we stand united in ensuring that we act, in all manners, as a “Kingdom of kohanim and a holy nation”.

One last word is in order.  The Takkanah of the Syrian-Jewish community did not spread to other groups, but it did not have to. It accomplished what its proponents felt was important for its adherents. A Takkanah regarding integrity in the Get process does not require universal acceptance. Any shul, or school, or agency can accept this responsibility for its own constituency. It puts people on record as being interested in doing something to control a most unfortunate phenomenon. It is a good deal more than the proverbial “sigh” that was rightly decried by the Alter of Slabodka. Perhaps it will spare one individual from Agunah status. Perhaps it will inspire others to look into this important matter with more dedication and creativity. That will be of the greatest value to the individual and to the community.

(I would like to thank my son, Rabbi Daniel Rosenfeld, of Erez Hemda in Israel, for his insights and reactions to this article.)